Summary: The Council failed to consider the totality of school placement and transport costs when an Education, Health and Care (EHC) plan was amended to name a new school. It therefore failed to consider eligibility for school transport for a child with an EHC plan by applying the correct legal test (‘the Dudley test’). This casts doubt on the decision reached. The Council will reconsider the transport application in line with the Dudley test and provide a fresh written decision and right of appeal.

The complaint

1. Miss X complains about the Council’s decision to decline to provide free home to school transport for her child, whom I shall refer to as Y, to the school they prefer. Y has special educational needs (SEN) and an Education, Health and Care (EHC) plan. Miss X considers her child is eligible for transport and wants the Council to provide her with a personal travel budget to cover the costs of driving her child to school.
2. Ms X wants a personal travel budget backdated to the date she applied for it, which was September 2021.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. I have considered relevant law and guidance including:
• Education Act 1996
• Children and Families Act 2014 and associated Regulations and Code of Practice
• Department for Education ‘Home to School transport guidance’, July 2014 (‘The Guidance’)
• Ombudsman’s Focus Report ‘All on Board? Navigating School Transport Issues’, 2017
8. I have considered the transport application, complaint documents, Council’s home to school transport policy and the Council’s response to my enquiries.
9. I have spoken to Ms X by telephone.
10. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Relevant law

A Council must make such travel arrangements as it considers necessary to facilitate an 'eligible child' to attend their relevant educational establishment. The Council must provide this free of charge. (The Education Act 1996, section 508B

12. In addition to arrangements for 'eligible' children under s.508B, councils also have discretion under s.508C to go beyond their statutory duties and provide transport arrangements to children who are not entitled to free transport. 'Travel arrangements' are defined as the provision of transport, provision of an escort, payment of travel expenses or allowances.
13. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.

14. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Councils must review EHC plans at least annually, and a review meeting must be held. Following the meeting, the Council must make one of three decisions:
• To amend the plan
• To keep the plan the same
• To cease the plan.
15. All three decisions can be appealed to the SEND Tribunal. Where the Council decides to amend, the appeal right only arises when the final amended EHC Plan is issued.
16. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
17. When an amended draft EHC plan is issued the child’s parents, or the young person, have the right to express a preference that the Council name a particular school of the type listed in section 38(3) of the Children and Families Act (‘The Act’). The list includes maintained special schools and schools approved by the Secretary of State under section 41 of The Act. The Council should name the parent’s preference school on the EHC plan unless:

• It is unsuitable for the age, ability, aptitude or SEN of the young person, or
• The attendance of the young person at the requested school is incompatible with:
1. The provision of efficient education for others, or
2. The efficient use of resources. (Children and Families Act 2014, s.39(3))
1. The Courts have found that the mere fact a parental / young person’s preference is more expensive is not an automatic barrier to the efficient use of resources test. The Council or Tribunal must balance the statutory weight given to the parent / preference against the extra cost when deciding whether it is an inefficient use of resources. The Council or Tribunal must then, as a second stage, balance the extra cost against any extra benefit it is claimed the more expensive placement will bring to the young person. (Essex CC v SENDIST [2006] EWHC 1105 (Admin))
2. Where the parent and the Council prefer different placements but attendance at the parent preference would lead to additional transport costs, the Court of Appeal has set out a test (‘the Dudley test’) that councils should apply when deciding whether they are obliged to pay for transport to a parent's choice of school:
• First it should be established whether both schools are in fact suitable, and whether arrangements could be made for the child to attend the council's choice of school (that is whether a place is available). If the Council's choice is not suitable, or there is no place available, then the parent's choice is the nearest suitable school.
• If both schools are suitable, the cost of providing transport to both should be established and taken into account when considering whether the parent's choice is incompatible with the efficient use of resources.
• If the total cost of the parent's choice of school compared to the Council's choice of school (including transport) is so significant as to represent an inefficient use of resources, then the council can name two schools, with the condition the parents provide transport to their choice of school. (Dudley MBC v S [2021] EWCA Civ 346)
3. Where a parent disagrees that the school named in the EHC plan by the Council is suitable, or consider it is suitable but consider their preference does not represent unreasonable public expenditure, they can appeal to the SEND Tribunal for a determination. The Tribunal has the power to replace the Council’s choice of school for the parent’s choice and to require the Council to fund transport.
4. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. (Home to School transport guidance July 2014 paragraphs 54-55)

Council’s transport policy

22. The Council’s website says children with EHC plans normally won’t be entitled to free school transport if they do not attend the closest school that meets their needs ‘unless it can be demonstrated any associated or additional costs would represent an efficient use of the Council’s resources, or are negligible…In most cases greater distance travelled results in greater associated or additional costs and consequently it would not normally be considered an efficient use of public resources to provide free home to school transport where the child’s parents have decided that the child should not be attending the nearest appropriate school’.
23. The Council provides personal transport budgets (PTB) to some children with EHC plans but only where they meet the eligibility criteria for free transport. PTB are granted only at the discretion of the Council and where it is the most cost-effective option for the Council to meet its statutory transport duties. A PTB is stated to allow flexibility to the family in how they get their child to school rather than travelling on a vehicle contracted by the Council. The PTB is based on distance between home and school and an annual budget is provided as follows:
• Less than 5 miles - £2000
• 5-10 miles - £3000
• Over 10 miles - £5000.
24. The policy says mileage payments may be more appropriate than a PTB where parents consider they must transport their child to school
25. The policy states that where a child is eligible for free transport it is for the Council to determine the most appropriate mode of transport which may be a bus pass or a seat on a council contracted vehicle rather than a mileage allowance or PTB.

What happened

26. The Council wanted to name School A in the EHC plan as the placement Y should attend. Miss X disagreed. Ms X appealed to the SEND Tribunal. The Tribunal decided School A was appropriate and should be named in the Plan.
27. Miss X refused to send Y to School A. The Council did not enforce attendance. Y was out of school from July 2020.
28. At annual review in March 2021, Ms X asked to change the placement in the EHC plan to name School B. This was not a school that was considered during the previous appeal.
29. The Council’s Funding and Independent Schools Panel initially refused, considering this was a non-attendance issue and Y should attend School A, as the Tribunal had ordered.
30. The case came back to the Panel when Ms X indicated she would appeal again to the SEND Tribunal. Panel records show Ms X told the Council she would transport Y herself. When the panel considered the costs of School A and School B, it did not have transport costs because it was understood Ms X was transporting Y. The Council agreed to name School B on the basis there was a small difference in costs between School A and School B. It issued a final amended EHC plan in July 2021.
31. The wording on Section I of the EHC plan names both schools, School A as the nearest school that can meet need, and School B as parental preference on the basis parents have agreed to be responsible for transport costs.
32. Ms X had a right of appeal against the final EHC plan.
33. Miss X applied for free home to school transport in September 2021 once Y had started at School B. The Council refused on the basis Y was not attending his closest suitable school.
34. Ms X was clear she wanted to drive Y herself and was only interested in having her costs covered.
35. Ms X appealed under the Council’s transport appeal process. The appeal was unsuccessful at stage one because Y was not attending the nearest appropriate school.
36. Documents show that the cost of transport to School A and School B were calculated during the transport appeal process. These show that the cost of adding Y to existing transport going to School B was £10 a day, and to School A was £32 per day.
37. At stage two of the transport appeal, panel members noted they ‘did not have discretion in awarding non eligible children a PTB, however if they chose to make Y an eligible child then it would be for the transport team to identify the most cost effective mode of transport which could be a PTB. Or Members could award cash allowance 45p a journey.’
38. The panel considered Y was not eligible for transport as he was not attending the nearest suitable school. The panel considered it did not have discretion to award transport where a child did not meet the nearest school criteria.
39. The Panel went on to consider if it would make a discretionary award. The panel declined as, while it understood Ms X had strong reasons for wanting School B, there was no evidence School A could not meet need.
40. Ms X brought her complaint to the Ombudsman.
41. Ms X is currently driving Y at her own expense. She told me other families living locally are paid to do the travel and believes she is entitled to a PTB.

Analysis

42. School A is a local authority special school over 3 miles from home. School B is an independent special school listed as a s.41 school and is 16 miles from home. Y would therefore have been eligible for free home to school transport if he had attended School A.
43. Both schools are deemed suitable by the Council as both are named in the July 2021 EHC plan.
44. As School A is nearer, and suitable, Y would only be eligible for free transport if his attendance at School B, inclusive of transport costs, did not represent unreasonable public expenditure.
45. I find the Dudley Test was not considered by the Council when the matter of transport arose when Ms X requested a budget in Summer 2021. While I acknowledge the finding of the previous Tribunal, this decision was not binding on the Council following the next annual review which took place in Spring 2021. Indeed, the Council amended the Plan to name both schools after this review. When a Plan is amended the parent gets a new opportunity to express a preference when they receive the draft plan. Ms X requested School B.
46. I find it was not fault for the Council to have taken Ms X at her word she would be responsible for transport at the time of the draft plan. However, it has subsequently become apparent that what Ms X meant by offering to transport Y was simply that she wanted to take him, Ms X did not mean she was also taking on the financial responsibility to do so. Ms X still wanted financial support from the Council.
47. Ms X could have appealed the final EHC plan to the SEND Tribunal in Summer 2021, however she was not aware this situation is an exception where a Tribunal can look at transport costs, therefore I consider it was reasonable for her not to have appealed. Ms X was happy with the school named and assumed she needed to seek transport costs through the Council’s policy.
48. Once it became apparent Ms X did want her transport costs paid, I find the Council should have carried out a comparison of costs, including transport costs, as per the Dudley test. It did not do so. This was fault.
49. The Council and transport appeal panel should have had information about:
• The cost to attend School A
• The cost to attend School B
• Transport costs to School A (£32 per day)
• Transport costs to School B (£10 per day or a PTB / mileage allowance whichever was cheaper).
50. It only had transport costs; these showed the Council’s choice of school, School A, was more expensive for transport. However, we know from the panel minutes School B was marginally more expensive on place costs.
51. I find notwithstanding the earlier Tribunal decision, the Council does need to carry out the second and third steps of the Dudley Test to establish:
• Whether School B is more expensive to attend than School A when both place and transport costs are considered;
• If so, whether the additional cost is such that it represents an inefficient use of public resources.
52. If School B is found, when taking all costs into consideration, not to be an inefficient use of resources it should be named on the EHC plan as the only school and transport should be provided. I acknowledge that Ms X does not want a place on transport, but a mileage allowance / PTB, however the Council would only have to provide the most efficient transport option in the scenario Y was entitled to free transport.
53. If after carrying out the cost comparison the Council found School B was an inefficient use of resources, but Ms X did not agree, she can appeal this matter to the SEND Tribunal at the next review.

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Agreed action

54. Within four weeks of my final decision the Council will reconsider Ms X’s transport application taking into account all of the steps set out in the Dudley test. It should provide its decision, in writing, with reasons. It should provide the same appeal rights as though this were a new application.
55. If the Council reverses its previous decision and finds Y is eligible for free transport / only School B should be named on the Plan, it should refund Ms X’s mileage costs from the date of her application in September 2021.
56. Within two months of my final decision, the Council should consider the lessons to be learned from this complaint and share the learning with relevant officers and panel members. This could be by using this as a case example when the next training of officers and panel members occurs. The facts of this case are unusual, given there was a previous Tribunal decision, and I consider this is likely to have been a ‘one-off’ error rather than systemic fault requiring service improvements.

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Final decision

57. I have completed my investigation. The Council failed to consider the totality of school placement and transport costs when an EHC plan was amended to name a new school and therefore it failed to consider eligibility for school transport for a child with an EHC plan by applying the correct legal test. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman